R v Malec - [2016] ACTSC 329

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Malec
Citation:	[2016] ACTSC 329
Hearing Date:	12 August 2016
DecisionDates:	30 August, 31 October 2016
Before:	Burns J
Decision:	See [50]-[52]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspiracy – conspiring to traffic in a controlled drug other than cannabis – plea of guilty – reasonable prospects of rehabilitation – general deterrence – Intensive Correction Order.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 42 Crimes (Sentencing Administration) Act 2005 (ACT) s 11 Criminal Code 2002 (ACT) ss 48, 603(7) Magistrates Court Act 1930 (ACT) s 90B
Cases Cited:	R v Rasic [2016] ACTSC 156
Parties:	The Queen (Crown) Ryan Malec (Offender)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Lawton (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) pappas, j. - attorney (Offender)
File Numbers:	SCC 57 of 2015; SCC 59 of 2015

BURNS J:

Ryan Malec, you have pleaded guilty to one charge of conspiring with Thor Kristiansen, Anthony Hagen, Bianca Rasic, Menka Krsteska and Adley Tsang to traffic methylamphetamine between 1 June 2013 and 14 May 2014. It now falls to me to sentence you.

You were part of an ongoing drug conspiracy within the Australian Capital Territory. The key organisers of the conspiracy were Thor Kristiansen and Anthony Hagen. Messrs Kristiansen and Hagen used mobile phones to arrange the purchase, packaging and delivery of methylamphetamine into the Alexander Maconochie Centre (AMC). They also used their mobile phones to organise and control the sale of drugs by associates on the outside of the AMC.

You joined the conspiracy in late January 2014, and from that time and continuing through until 14 May 2014, you performed a number of overt acts as part of your involvement in the conspiracy. At various times you:

(a)stored and prepared methylamphetamine for sale on behalf of Mr Kristiansen;
(b)stored proceeds from the sale of methylamphetamine on behalf of Mr Kristiansen;
(c)arranged for the introduction of methylamphetamine into the AMC;
(d)sold methylamphetamine;
(e)arranged for couriers to transport methylamphetamine from Sydney to Canberra; and
(f)participated in discussions with Mr Kristiansen about the quality of methylamphetamine with a view to maintaining customer demand for the product.

The maximum penalty for the offence of conspiring to traffic in methylamphetamine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code), by virtue of s 48 of the Criminal Code, is 10 years imprisonment, a fine of $150,000 or both.

You were first before the Magistrates Court on 21 November 2014 and charged with offences of conspiracy to traffic in a controlled drug other than cannabis, namely methylamphetamine; trafficking in a controlled drug other than cannabis, namely methylamphetamine; money laundering; participating in a criminal group and dealing with the proceeds of crime. You entered pleas of not guilty to each of those charges and you were committed on 19 March 2015 for trial in this Court. Pursuant to s 90B of the Magistrates Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Malec

Details

AGLC: R v Malec [2016] ACTSC 329
Case: [2016] ACTSC 329
Decision Date: 31 October 2016

CaseChat Overview and Summary

The case of R v Malec involved the defendant, Malec, who had pleaded guilty to conspiring to traffic in a controlled drug other than cannabis. The court was tasked with determining an appropriate sentence for this offence. Malec's legal representatives argued for an Intensive Correction Order (ICO), citing his reasonable prospects of rehabilitation and the need for general deterrence. The prosecution, on the other hand, sought a custodial sentence to adequately reflect the gravity of the offence.

The court was required to weigh several factors in determining the appropriate sentence. These included the nature and circumstances of the offence, Malec's prospects of rehabilitation, and the need for general deterrence. The court had to consider whether an ICO would be sufficient to address the objectives of sentencing or if a custodial sentence was warranted. Additionally, the court had to balance the individual circumstances of Malec against the broader societal need to deter such criminal activity.

In delivering the judgment, the court considered Malec's guilty plea, his reasonable prospects of rehabilitation, and the need for general deterrence. The court determined that while an ICO could address some aspects of sentencing, it was not sufficient to adequately reflect the seriousness of the offence or to deter future criminal conduct. Consequently, the court decided that a custodial sentence was necessary to meet the objectives of punishment and deterrence. The court imposed a sentence that balanced the individual circumstances of Malec with the broader societal need to address drug trafficking offences.

The court ordered that Malec be sentenced to a term of imprisonment, with specific details of the sentence outlined in the judgment. The court also considered the possibility of an ICO in conjunction with the custodial sentence, but ultimately decided against it, given the nature and gravity of the offence.

Orders

Orders of the court

See [50]-[52]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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